Dias v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 689
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dias v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 689
File number: MLG 499 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 19 August 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), Division 6 of Part 6 in Chapter 4
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) and r 17.05(2)(a)
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 19 August 2022 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Mr S Mak Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 499 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MAHASINHAGE HASITHA NUWAN DIAS
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
19 AUGUST 2022
THE COURT ORDERS THAT:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The application be dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
4.The applicant pay the first respondent’s costs fixed in the sum of $6,000.
5.Written reasons for judgment to be published from Chambers at a later date.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
This matter was listed before the Court for a final hearing at 12.00pm (AEST) / 10.00am (AWST) on 19 August 2022. When the matter was called, there was no appearance by or for the applicant.
In the circumstances, the Court made the following orders:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The application be dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
4. The applicant pay the first respondent’s costs fixed in the sum of $6,000.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 above. They explain why the Court dismissed the matter for non-appearance.
BACKGROUND
Before the Court is an application for judicial review filed in the Melbourne Registry of the then Federal Circuit Court of Australia (the “FCCA”) on 27 February 2018 (the “application”). That application was accompanied by an affidavit which was sworn by the applicant on 7 February 2018 (and filed with this Court on 27 February 2018).
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the Administrative Appeals Tribunal on 25 January 2018.
On 25 January 2019, orders were made by Registrar Luxton in the FCCA programming the matter to a “final hearing in 2021 on a date to be advised by the Court before Judge Mercuri” (as she then was).
On 21 February 2022, the matter was listed for a callover on 9 March 2022 by telephone before Registrar van der Westhuizen of this Court. The applicant appeared at that callover and orders were made programming the matter to a “final hearing via video link before [this Court] at 12.00 midday AEST (Melbourne time) / 10.00am AWST (Perth time) on 19 August 2022”.
On 14 March 2022, a member of the Court’s Migration Team provided the parties with a copy of the above orders via email and reminded the parties of the date and time of the hearing.
On 15 August 2022, the parties were reminded by my chambers of the date, time and location of the hearing. The parties were also given instructions on how to attend that hearing by video link using Microsoft Teams.
Prior to the hearing, Mr Mak, solicitor for the first respondent (the “Minister”) provided a copy of email correspondence he had sent to the applicant on 18 August 2022. That correspondence reminded the applicant of the time and date of the hearing and put the applicant on notice that, if he failed to attend the hearing, the Minister would seek for the application to be dismissed with costs.
As outlined above, when the matter came before the Court (on 19 August 2022), there was no appearance by or for the applicant. Mr Mak appeared for the Minister.
The affidavit of Stanley Ho Chung Mak (affirmed and filed on 12 August 2022) (the “Mak affidavit”) was taken as read and in evidence.
Correspondence from my chambers and from Mr Mak (as outlined above) was tendered and referenced as Exhibit 1.
The Court asked Mr Mak how the Minister wished to proceed in the circumstances.
Mr Mak advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) and sought the Minister’s costs, fixed in the sum of $6,000.
Noting the correspondence contained in the Mak affidavit and Exhibit 1, the Court was satisfied that the applicant had been properly notified of the hearing date and time and advised of what he needed to do to participate in that hearing.
In relation to the costs order sought by the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Mr Mak was prepared to make oral submissions at the hearing as required.
CONCLUSION
In the circumstances, the Court made orders to dismiss the matter for non-appearance and awarded costs to the Minister as outlined at [2] above.
The Court notes that the applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 25 August 2022
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